Consideration - ground 1
47 Repeating the effect of the summary above at [15]-[18], the first version of the invoice provided by the appellant had the appellant's name highlighted above the company name as the addressee and also had her name and details as the contact person. A check by the delegate with the issuer of the original invoice revealed that the first version had been altered, relevantly adding the appellant's name and company name in place of the business name of the store (Crazy Fish - Castle Hill), and Ms Zhang's name as the contact person above Ms Zhang's email address. It was not in dispute that an invoice furnished by the appellant had been altered, nor that the alteration fell within the definition of being "bogus". The Tribunal's findings in that regard warrant reproduction (at [41]-[42]):
The Tribunal accepts that the applicant did not herself alter the invoice: It accepts that the invoice in its altered state was emailed to her by Jason Yang, Ms Zhang's husband. However it finds, having been altered, the document is no longer a genuine invoice issued by Shanghaied but an imitation of the invoice issued, designed to pass as the original. The Tribunal finds therefore that the invoice referring to the applicant as the business contact person is counterfeit. The Tribunal is of the view the alteration was intended to deceive the Department in relation to the applicant's involvement in dealing with Shanghaied. The Tribunal accepts that the applicant may not have been aware the information was purposely untrue. However, it is satisfied there [was] an element of fraud or deception, probably by Jason Yang or Ms Zhang, employed to mislead … the Department with respect to the applicant's dealings, in this case, with Shanghaied.
Accordingly the Tribunal finds that the invoice provided to an officer of the Department dated 8 March 2012 purporting to be issued by Shanghaied (invoice 49874), addressed directly to the applicant and recording the business contact: 'Ryland Jiang' is a bogus document within the meaning of s.5(b) of the Act. The Tribunal therefore finds that there is evidence that the applicant has given or caused to be given, to the Minister, or an officer, a bogus document in relation to the application for the visa. The Tribunal finds, therefore, that the applicant does not meet PIC 4020(1).
48 A live dispute before the primary judge and in this Court was whether the Tribunal had made any determination as to the appellant not being sheeted with responsibility for that having happened. The question of whether the Tribunal went further and made any finding, or had sufficient material before it to make a finding, that someone else was responsible in a way that constituted a fraud, in effect, on the appellant, is the substance of appeal ground 2.
49 The primary judge had the benefit of detailed submissions from the appellant as to the facts and circumstances of her visa application and merits review process, which were not disputed by the Minister, and were therefore adopted by her Honour verbatim and at some length. It is only necessary to go into that degree of detail in the determination of this appeal to the extent that it is necessary to adjudicate upon the competing arguments.
50 It is important to keep steadily in mind a number of practical considerations that inform the approach to be taken by the Tribunal on review, and thus when reading Tribunal decisions beneficially as required. The Tribunal is not confined to the basis for the delegate's decision because it is a merits review in the shoes of the original decision-maker, not an appeal. As a practical matter, however, the approach of a delegate, and the particular legal and factual issues identified in the delegate's reasons, will frequently be of considerable importance in framing the issues to be determined in that merits review. The treatment of the material before the delegate may also have a material bearing upon procedural fairness obligations, and also upon the scope of claims required to be considered by the Tribunal. In migration matters, especially beyond the more open-ended considerations affecting the revocation of a mandatory visa cancellation on character grounds, the processes of the Tribunal may require the review applicant to identify the issues that require consideration as part of merits review.
51 The sheer volume and diversity of merits review of migration decisions will tend to encourage an approach of making decisions on the simplest and most straightforward basis available. It should not be too readily inferred that a convoluted or complex approach was taken by the Tribunal when a simple approach would suffice for the decision required to be made. If one particular consideration is fatal to reaching a different ultimate conclusion to that reached by the delegate, even if on entirely different grounds, it may not be necessary to consider all other issues to complete the jurisdictional task. Consideration of those issues could amount to a form of administrative decision-making obiter dicta, which cannot be required in the proper exercise of jurisdiction (except, perhaps, in the context of refugee claims, with the possible need in that context and in some circumstances for the decision-maker to consider the possibility that a fatal adverse factual conclusion or prediction was incorrect).
52 The competing arguments ultimately turn on the characterisation of [16] of the Tribunal's reasons, in the context of the rest of those reasons, and the evidence of what took place at the Tribunal hearing. The effect of the appellant's argument is that the prior allegations made to the Department, of which she only apparently became aware of later, remained in play or at least were not so clearly rejected as to know that they were not influential in the final waiver decision. The Minister's contrary arguments are summarised above. It cannot be in doubt that the appellant made a wholesale attack on Ms Zhang's credibility, and that the Tribunal was well aware, to put it colloquially, that Ms Zhang had an axe to grind.
53 It is helpful at this stage to reproduce [16] of the Tribunal's reasons a second time:
In September 2015 the Tribunal received an anonymous allegation about the applicant's involvement in the business however the person informed the Tribunal that she is a 39% stakeholder in the applicant's business so it is apparent to the Tribunal that the allegations have been made by Ms Zhang. The allegation claimed that when the business was not going well the applicant gave the informant money (about $80,000) to 'spend' at the shop but nothing was ever actually purchased. The informant stated the shop was closing down. Ms Zhang subsequently provided to the Tribunal some of these particulars in her name. The Tribunal is aware that the applicant and Ms Zhang's relationship has deteriorated to the extent that they are involved in litigation regarding the winding up of Z J International. Accordingly the Tribunal is of the view that there is a significant risk that Ms Zhang's allegations may be vexatious and not be reliable. In these circumstances the Tribunal gives no weight to the allegations and does not rely on any of the particulars from the allegations to make its findings.
54 As noted above, the Minister argues that the Tribunal was at [16] referring to all of the allegations made by the appellant's business partner, Ms Zhang, including those made to the delegate, and not confined to those made to the Tribunal. The appellant argues to the contrary that the Tribunal was referring only to the allegations made to the Tribunal, and that the parallel and earlier allegations made to the delegate remained in play. Even a beneficial reading of the Tribunal's reasons at [16], if read in isolation, do not support the Minister's interpretation; and the appellant's literal interpretation of the words used appears to be correct. But those words are not to be read in isolation, but rather in context, and in a practical and realistic way, which can be, and in this case is, part of the substance of a beneficial reading.
55 An available inference is that the Tribunal was not aware of the allegations made to the Department; and no evidence was before the primary judge or this Court to show otherwise. But even if that was not correct, and the Tribunal was fully aware of the allegations made to the Department and thus to the delegate, the appellant was unable to explain why the Tribunal would have any regard to those allegations whilst putting to one side allegations made directly to it, let alone to do so without referring to that material in circumstances in which there had been a direct attack on Ms Zhang's motives and thereby credibility. The literal inference relied upon by the appellant as to the allegations made to the delegate remaining in play does not make any sense, even in relation to the wavier issue. A contextual and logical beneficial reading does not support the appellant's argument that the prior allegations by Mr Zhang that were before the delegate remained in play once similar allegations made directly to the Tribunal were overtly put to one side.
56 I am fortified in that conclusion by a number of features of this case, both implicit and overt, having read and carefully considered both the Tribunal reasons and the transcript of the Tribunal hearing.
57 As to the implicit features of this case, the Tribunal necessarily had a powerful and proper incentive to decide the case without determining the question of how, in fact, the bogus invoice had come into existence and who was responsible for that taking place. That was especially so when Ms Zhang did not have any opportunity to be heard. Such serious allegations are only going to be finally resolved in a non-adversarial Tribunal setting if that is truly necessary to the making of the decision. In relation to waiver, there was nothing to suggest that the Tribunal's consideration of the express criteria would ordinarily be affected by credit reasoning of the kind that the appellant relies upon. This is quite unlike the situation in Khan in which it was difficult to accept that the material that was not mentioned would not have featured in the reasoning process. An inference that such reasoning was in play here is not rationally, let alone readily, drawn.
58 As to the overt features of this case, it is necessary to have regard to what took place at the Tribunal hearing, and what was said in the Tribunal's reasons to determine if that establishes any proper basis to support the same inference in the absence of any reference to the prior allegations made by Ms Zhang to the Department. I accept the Minister's submissions in that regard: the Tribunal's reasons demonstrate a two stage process, concerned with whether the first version of the invoice was bogus; and then with the question of whether the requirement not to have a bogus document was waived. The waiver stage focussed on whether there were compelling circumstances of the kind referred to in the criteria for waiver, weighing the fact of the provision of the falsified invoice (there being no finding of fraud by the appellant) against the appellants' other circumstances. In those circumstances, the Tribunal's disclaimer at [16] could be read more broadly to constitute a wholesale rejection of reliance upon any allegations made by Ms Zhang, especially in the context of the transcript of the hearing. Thus, there is no realistic possibility that those allegations formed the reason or part of the reason for affirming the delegate's decision.
59 Further support for the Minister's submissions can be gleaned from the Tribunal hearing transcript. At the hearing, the Tribunal made reference to the dispute concerning the business, with the Tribunal member saying (at page 3, line 25) that she was "not looking at the sale of the business and who should get what and who owes that, but - too complicated for me to have to make findings about that". The Tribunal then referred to being greatly assisted by submissions made on behalf of the appellant and referred to the original invoice and the first version of the invoice. The Tribunal member said (at page 19, line 38) that the focus as to the visa criteria had to be on whether the first version of the invoice was (in fact) a bogus document. The Tribunal member said at page 20, line 24 that she understood that the relationship between the appellant and Ms Zhang "went very bad". On the topic of the waiver, the Tribunal member was focussing on waiver conditions, with no suggestion in the subsequent transcript hearing pages that there was any issue on the waiver question as to the appellant's credibility, expressly saying (at page 28, line 43) that the member did not wish to go back to who was responsible for trying to show, via the changes to the invoice, that the appellant was involved in the day to day management of the business. The appellant's representative expressly embraced that approach. Close to the end of the hearing, the Tribunal member said (page 29, line 5):
I have to think about it really carefully. I appreciate that you've been living here as a resident of Australia and your son came here as a young boy and he's doing well at school. There's a lot at stake.
60 The Tribunal's reasons addressed the issue of the bogus document under the heading of waiver, a part of which warrants reproduction (from part of [45]):
The Tribunal is of the view the invoice was probably altered to embellish the applicant's involvement but it is inclined to agree with the applicant that this was not necessary because there was already ample evidence of her involvement in the day to day management of the business. The unfortunate outcome for the applicant is that, because of the finding that a bogus document was provided to the Department, she does not meet cl.4020(1). The Tribunal is of the view however that the particular circumstances in which she fails to meet cl.4020(1) do not allow the Tribunal to lower it[s] assessment in relation to whether there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa.
61 The comments above indicate a somewhat sympathetic stance towards the appellant.
62 The Tribunal's reasons then consider the waiver criteria (at [46]-[58]) concluding on this topic (at [59]):
The Tribunal has also considered all of the evidence in relation to waiver cumulatively. It accepts the applicants have settled into the Australian community and make positive contributions in a range of ways. It accepts they have close ties in Australia, to both individuals and organisations. However, while it accepts there are Australian citizens and permanent residents who value their relationships with the applicants, and that the applicants will be missed by those parties, even considering the circumstances cumulatively it is not persuaded these are compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
63 There is simply nothing to support the suggestion that the Tribunal made the decision on the waiver issue by reference to hidden adverse character considerations of the kind that the appellant relies upon. In context, it is impossible to accept that those prior allegations remained in play. In this case, the absence of a reference to the prior allegations, rather than supporting an inference that they remained in play and could have in some way tainted the Tribunal's reasoning on waiver, supports the clearest of inferences in context that they were not referred to because they were not in any way taken into account by the Tribunal. The conclusion reached in Khan is therefore not available to be reached in this case.